A Discussion on Restoring Habeas Corpus Rights to Detainees

Habeas corpus is rightfully regarded as a cornerstone of our laws and Constitution, and has been so since the founding of this country more than two hundred years ago.  In any society committed to individual freedom and the rule of law, a person detained by the state must have the right to question the grounds for his detention before an independent and neutral decision-maker.  In America, habeas has always provided that right, making it what Alexander Hamilton called the “bulwark” of individual liberty against secret imprisonment, the most “dangerous engine of arbitrary government.”

Yet, since September 11, the Bush Administration, and its supporters in Congress have waged a sustained campaign to wipe out habeas rights for those the President deems “enemy combatants” in his “Global War on Terror.”  These anti-habeas arguments rely on a detainee’s citizenship status (as a foreign national); a detainee’s location (as outside as opposed to inside the United States); and, the generalized assertions about the writ’s unavailability during wartime.  These arguments have all been deployed to preclude the recognition of habeas rights for detainees at Guantánamo and, after the Supreme Court rejected those arguments in Rasul v. Bush and Hamdan v. Rumsfeld, to engineer passage of habeas-stripping legislation in Congress, and then defend the constitutionality of that legislation in court.  But if its tactics have changed, the Bush Administration’s goal has remained constant: to prevent any meaningful judicial check on the President’s decisions about who to detain and why.

Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center.  Mr. Hafetz is counsel in several leading post-9/11 detention cases, including AlMarri v. Pucciarrelli, challenging the indefinite military detention of a lawful resident alien arrested in the United States, and Munaf v. Geren and Omar v. Geren, two cases involving U.S. citizens unlawfully detained in Iraq. Mr. Hafetz has also helped coordinate the Guantánamo detainee litigation since its earliest stages, and currently represents a detainee at Guantánamo.